## UNITED STATES ARMY COUR T OF CRIMINAL APPEALS

Before MULLIGAN, PENLAND, and FEBBO Appellate Military Judges

UNITED STATES, Appellee

v. Private First Class DALE A. GAGNON United States Army, Appellant

ARMY 20130210

Headquarters, United States Army Alaska Stefan R. Wolfe, Military Judge Colonel Tyler Harder, Staff Judge Advocate (pretrial) Colonel Erik L. Christiansen, St aff Judge Advocate (post-trial)

For Appellant: Captain Scott A. Martin, JA; C. Ed Massey, Es quire (on brief);

For Appellee: Colonel Mark H. Sydenham, JA; Lieutenant Colone l A.G. Courie, III, JA; Major Melissa Dasg upta Smith, JA; Capt ain Jennifer A. Dona hue, JA (on brief).

31 July 2017

---------------------------------- SUMMARY DISPOSITION

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FEBBO, Judge:

In this appeal, we address whether the military judge violated appellant's

Sixth Amendment right to confront a se ven year old wi tness against him by allowing the witness to testify outside of appellant's presence.

A panel composed of offi cer and enlisted me mbers, sitting as a general courtmartial convicted appellant, contrary to hi s pleas, of one specifi cation of aggravated sexual contact with a child, in violation of Article 12 0 of the Uniform Code of Military Justice, 10 U.S.C. § 920 (2006 & Supp. IV 2011) [hereinafter UCMJ]. The members sentenced appellant to a dishonorable di scharge, confinement for fourteen years, forfeiture of all pa y and allowances, an d reduction to the grade of E-1. Except for reducing th e sentence of confinement to thirteen years and six months, the convening authority (CA) ap proved the adjudged sentence.

This case is before us for review pursuant to Ar ticle 66, UCMJ. Appellant raises seven assignments of error, only one of which—that the military judgeGAGNON—ARMY 20130210

2 allowed a witness to testify outside of the presence of the appellant—warrants discussion, bu t no relief. 1

BACKGROUND

In July of 2009, Pr ivate First Class (PFC) Gagno n and his spouse, Ms. SG,

divorced. In the summer of 20 11, after the divorc e, they shared cu stody of their two young children, LG and KG.

Sometime after August 2011, LG told her babysitter, Mrs. JF, that she was sexually abused by her fath er—PFC Gagnon. Mrs. JF, in formed Ms. SG of LG’s allegations. Init ially, Ms. SG did not report the allegations to authorities or confront PFC Gagnon. Two weeks late r, Mrs. JF, repo rted the allegati ons to her own therapist, which led to notifi cations to the Office of Ch ildren’s Services (OCS) in Fairbanks, Alaska, an d the Fairbanks Police Departme nt. During the initial OCS interview, LG did not disclo se any sexual abuse by PF C Gagnon. However, in a subsequent OCS interview, LG stated he r father had touche d her vaginal area.

After the initial disclosure of the abuse allegations, LG was referred to a therapist, Ms. SH, for mental health treatme nt. By the time of trial, Ms. SH had completed approximately thirty-six sessio ns with LG and had diagnosed LG with

Post-Traumatic Stress Disorder as a result of PFC Gagnon’s abuse.

At trial, the g overnment moved in limine to have LG tes tify remotely. LG was then seven years ol d. In support of the motion, Ms. SH testifie d as an expert in child therapy and about her diagnosis and obser vations of LG ba sed on their many therapy sessions. Ms . SH testified as to LG’s bod y language and demeanor during the counselling sessions when discussing her father and that LG still feared him.

Ms. SH recommended that LG not testify in front of appellant and concluded that doing so could negative ly impact and cause regression of LG’s mental health. After considering the matters presented on the mo tion, the military ju dge found that LG

1 We briefly address two other assigned errors.

First, we find the military judge did not err in deny ing appellant’s individual military counsel (IMC) requ est based on a fi nding appellant released the same

counsel before trial.

Second, while we agree the g overnment was dilatory in it s post-trial processing of this case, we do not find a due process viol ation. The Staff Judge Advocate recommended the CA credit appellant with three months agains t the sentence to confinement for the post-t rial delay. The CA, by granting six months of confinement credit, more than reme died any harm to the appellant.GAGNON—ARMY 20130210

3 still feared her father and wa s unable to testify in open court in th e presence of the appellant without suffering significate emotional trauma. 2 Accordingly, the military judge granted the governme nt’s motion to allow LG to testify remotely.

At the start of tria l on the merits, PFC Gagnon’s defense counsel informed the government that appellant elect ed to be absent from the courtroom and to have LG testify in front of the panel. The mil itary judge accommodate d appellant’s request for one-way video and audio, which allowed PFC Gagnon to observe LG’s testimony, but not allow the pa nel to observe appellant. Appellant had one defense counsel with him in a room adjacent to the courtroom while the other defense counsel was present in the co urtroom during LG’s testim ony. The parties agreed if LG could not verbally respond to questions during her testimony her guardian ad

litem would read LG’s written responses.

Prior to LG’s testimony, the military ju dge gave the panel an instruction to explain the appellant’s absence from the co urt-room while his da ughter testified. LG testified that appellant touched her private parts and indicated on a blank female diagram that he touched her vaginal area. For most of the remaining questions on

direct and cross-examinatio n, LG wrote down the answer to the counse l’s question, the parties reviewed the answer to make any objections, and the guardian ad litem then read the answer to the panel.

LAW AND DISCUSSION

A. Whether the Milita ry Judge Erred in Al lowing LG to Testif y Outside the Presence of Appellant

On appeal, appellant asserts he was denied a meaningful opportunity to

confront and cross-examine hi s accuser. Appellant assert s his defense counsel could not adequately prepare for trial since he di d not have an opportun ity to question LG before trial. At trial, ap pellant states he wa s removed from the courtroom during the testimony of LG. Furt hermore, LG failed to give verb al responses a nd instead wrote responses to questions asked by counsel. As a result, counsel as serts, this process and procedure violated appellant’s rights.

1. Forfeiture and Waiver

Before addressing appellant’s allegation of error, we fi rst must determine whether the issues were pres erved on appeal. Appellant objected to the government motion for LG to testify remotely. The military judge nonethe less, over defense objection, allowed for testim ony in this manner. We reject the government’s

2 During appellate review, the court grante d the government’s motion to attach the military ju dge’s written ruling on the mo tion as part of the record.GAGNON—ARMY 20130210

4 assertion that appellant’s decision to leav e the courtroom affirmatively waived his Sixth Amendment challenge to remote testimony. Appellan t elected to be absent from the courtroom during LG ’s testimony, as was his op tion under Rule for CourtMartial [hereinafter R.C.M. ] 804(d), thereby re moving the requir ement for LG to testify remotely. In our vi ew, however, his election did not change the fundamental nature of his objection of not being present in the same setting while LG testified, thus impinging on his right to confront the witness. Ther efore, we will review for plain error the military judg e’s decision to allow LG to testify remotely and the procedures set up to protect appellan t’s Sixth Amendment right to confront

witnesses.

On the other hand, appell ant has not preserved his two other challenges to LG’s testimony on appeal. Fail ure to assert a right in a timely manner forfeits the issue on appeal abse nt plain error. United States v. Ahern , 76 M.J. 194, 197 (C.A.A.F. 2017) (citing United States v. Gladue , 67 M.J. 311, 313 (C.A.A.F. 2009)). First, appellant did not specifically file a motion to compel produc tion of LG for an interview prior to trial. 3 Second, appellant did not object to the procedure allowing

LG to write her answers. In fact, for each written answer , the parties reviewed LG’s answer before being read to the panel an d the appellant’ s defense counsel indicated

on the form there were “no objections.” As a result, appellan t’s challenge on appeal

about her written an swers is waived.

2. Review of the Military Judge’ s Ruling for Remote Testimony

The Confrontation Clause of the Sixt h Amendment guarante es that "in all criminal prosecutions, the accu sed shall enjoy the ri ght . . . to be c onfronted with the witnesses against him." U.S. Const. amend. VI

. A military judge’s application of Military Rule of Eviden ce [hereinafter Mil. R. Evid.] 611(d) is a questi on of law that

is reviewed de novo. United States v. McCollum , 58 M.J. 323, 332 (C .A.A.F. 2003). In applying Mil. R. Evid. 611(d), the mi litary judge must sati sfy the requirements for an exception to phys ical, face-to-face confrontation laid out in Maryland v.

3 Since the issue was forfeite d and we do not fi nd any plain erro r, we need not decide whether or not appellant was impr operly precluded from interviewing LG.

We note from e-mails attached to appellate exhibits, that appellant’s counsel requested for the government trial counse l to arrange an interview of LG before

trial. Since Ms. SG was also a witness at trial, th e defense counsel requested that someone other than Ms. SG be present for LG’s interview with defense counsel and their expert. Ms. SG objec ted to a defense interview of LG unless she was also present. As this court found in United States v. Guardado , compulsory process under Article 46, UCMJ, is li mited to producing witnesse s to “appear and testify” and does not include a requirem ent that the witness first agree to be interviewed. 75 M.J. 889, 904 (Army Ct. Crim. App. 2016), rev. granted on other grounds , 76 M.J. 166 (C.A.A.F. 2017).GAGNON—ARMY 20130210

5 Craig , 497 U.S. 836 (1990). Craig recognized t here is an important public interest in “the physical and psychological well-being of a minor victim.” Id. at 852.

Craig stands for the proposition that a witness may testify out of an accused's presence only where the trial court finds (1) that there is an import ant public interest that will be served by denyin g physical confrontat ion, (2) that such denial is necessary to further that interest, and (3) that

other measures will ensure th e reliability of the testimony.

McCollum , 58 M.J. at 329.

After reviewing the record of trial, to include the te stimony of LG’s therapist, we find the military judge prop erly interpreted and applied Mil. R. Evi d. 611(d) and Craig in allowing LG to testify out of the presence of the appellant. First, the record fully supported the mi litary judge’s determination that LG woul d have been unable, out of fe ar, to testify in appellant's pres ence and would al so have suffered significant emotional trauma . Second, the procedures implemented by the military judge properly protected appellant's righ t to confrontation. The military judge ensured that appellant was able to communi cate with his counsel at all times during LG's testimony. The military j udge also required LG to te stify in court, under oath, in the presence of the pane l, and be subject to cros s-examination by appellant’s counsel. These protections were suffici ent to ensure the reliability of LG's testimony despite appellant's absence.

We therefore hold that the military judge did not violate a ppellant's Sixth Amendment right to confront a witness against him by allo wing LG to testify outside of appellant's presence.

CONCLUSION

The findings of guilty a nd the sentence are correct in law and fact and are

AFFIRMED.

Senior Judge MULLIGAN and Judge PENLAND concur.

FOR THE COURT:

MALCOLM H. SQUIRES, JR.

Clerk of Court MALCOLM H. SQUIRES, JR.

Clerk of Court FOR THE COURT: